The Trouble with Confidential Sources: A Criticism of the Supreme Court's Interest-Group View of the First Amendment in Cohen v Cowles Media Co

Abstract

The use of confidential sources by journalists has always been a matter of controversy. During the past several decades, the press has sought the right to maintain the confidentiality of its sources even in the face of subpoenas commanding disclosure. Normally such subpoenas arise when the press has published information that was received from a confidential source and is relevant to some criminal investigation conducted by the state. In Branzburg v. Hayes, for instance, several reporters sought constitutional immunity from complying with a grand jury subpoena requiring testimony concerning information obtained from confidential sources.

In Cohen, the press switched its position on confidentiality of sources and argued that the First Amendment confers the freedom to reveal source identities even when the press promises anonymity to those sources. The Supreme Court in Cohen rejected the press' arguments and hence continued a recent trend of judicial decisions unfavorable to the press.

This article examines the Court's decision in Cohen, particularly analyzing the view of the First Amendment expressed in the majority decision. This view, the “interest-group” view, was first articulated by the press in cases like Branzburg where it was used to argue for protected confidentiality of sources. Unfortunately, this view backfired in Cohen and led to a decision that ran contrary to the interests of the press.

Keywords: First Amendment Press Clause, press, Confidential source, Branzburg, Cohen, Interest-view, First Amentment

JEL Classification: K1, K10, K19, K30